Governor's BCP overhaul 'flawed' says environment expert.

Gov. Eliot Spitzer's proposal to change the state's three-year-old Brownfield Cleanup Program (BCP) drastically and dangerously curtails the incentive to cleanup and redevelop contaminated sites, according to Jon Schuyler Brooks, co-chair of the Environmental Practice Group at Phillips Nizer LLP.

"The BCP--flawed as it may be-is designed to provide a meaningful incentive, in the form of tax credits, to those willing to assume the burdens and risks of tackling problem properties that others will not touch," Brooks said.

"The Governor's proposed legislation effectively eliminates that incentive. You might as well put up detour signs that redirect the development community away from brownfield sites to properties that are not significantly contaminated."

Brooks, a member of the American Bar Association's Environmental Transactions and Brownfields Committee but speaking in his individual capacity, finds at least three main flaws in the Governor's proposal:

The incentives for redevelopment under BCP are effectively eliminated by being capped unreasonably, and subject to even further reduction; The cap is imposed not only on new applicants to the BCP, but also on existing applicants whose cleanup proposals (known as "Remedial Work Plans," or RWPs) are not approved by July 1 of this year; The State will publish the names and tax information of those receiving BCP tax credit. The key to getting developers to clean up contamination caused by someone elseis giving them the opportunity to put it into productive use, according to Brooks. "If there is little or no incentive to redevelop, then contaminated property, even after it is cleaned up, is no more desirable--and possibly less so--than any other piece of land," Brooks explained.

He pointed out the Governor's proposed amendments negate a key feature of the existing law: an enhanced incentive when a brownfield is in an economically challenged neighborhood.

"The result will be a serious blow to environmental justice concerns, burdening less fortunate communities with dangerously polluted, non-productive assets, and reducing opportunities for meaningful community revitalization--especially in the critical area of work-force housing," he says.

Brooks says also that any changes to the law should be applied only prospectively, to projects that apply to the BCP after any amendments are enacted.

And he warns that the legislation's reporting requirements constitute an invasion of privacy.

"By what rationale does the government now have the right to publish the tax liability of individual taxpayers?" he said. "This proposal is a gross violation of privacy and serves no legitimate purpose. The possibility of preferential treatment is non-existent."